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Levinson v. District Court7/29/1993
160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of mandamus will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170. Moreover, mandamus is an extraordinary remedy entertained and issued strictly as a matter of discretion with this court. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983).
As a general proposition, lis pendens are not appropriate instruments for use in promoting recoveries in actions for personal or money judgments; rather, their office is to prevent the transfer or loss of real property which is the subject of dispute in the action that provides the basis for the lis pendens. Evans v. Fulton Nat'l Mortgage Corp., 309 S.E.2d 884, 884-85 (Ga.Ct.App. 1983); see Wyatt v. Whemueller, 785 P.2d 581, 584 (Ariz. Ct.App. 1989), granted in part, vacated in part, 806 P.2d 870 (Ariz. 1991).
Although the doctrine of lis pendens may be applied to actions
[109 Nev. 747, Page 751]
other than foreclosures, its use is restricted to avoid abuse. Kaapu v. Aloha Tower Dev. Corp., 814 P.2d 396, 397 (Haw. 1991). The court in Burger v. Superior Court of Santa Clara County, 199 Cal.Rptr. 227 (Cal.Ct.App. 1984), pointed out the difficulties which are presented where a lis pendens is improperly utilized: It is one thing to say that there may be a colorable claim against real property and another to conclude that the claim is such as to affect the title or the right to possession of the property within the meaning of the lis pendens statute. [The petitioner's] contention that [the real party in interest] is seeking simply to avoid the complexities of California's attachment procedure contains the germ of a more general concern. Lis pendens is one of the few remaining provisional remedies available at its inception without prior notice to the adversary. Due process is said to be provided for by subsequent notice and an expungement procedure which casts the burden upon the proponent of the lis pendens, but a lis pendens may cause substantial hardship to the property owner before relief can be obtained. A commentator has expressed reservations as to . . . broad endorsement of lis pendens in claimed constructive trust actions on the ground that it tends “to create a right substantially similar to an ex parte prejudgment attachment of the defendant's assets, a remedy disfavored in California and severely limited because of its due process problems” (Cal. Lis Pendens Practice, § 2.7, p. 32 (citations omitted)). Overbroad definition of “an action . . . affecting the title or the right of possession of real property” would invite abuse of lis pendens. Id. at 230.
NRS 14.010(1) indicates that it is applicable “ n an action for the foreclosure of a mortgage upon real property, or affecting the title or possession of real property. . .” The instant action is not
[109 Nev. 747, Page 752]
of the type envisioned under this statute. The Stable never had title to the property which is now being “corralled” to satisfy a money judgment. Furthermore, Read is now attempting to encumber the property of the Levinsons despite the fact that they were not parties to her original personal injury action. While Read has presented relevant case law indicating that lis pendens may apply to actions designed to avoid conveyances or transfers in fraud of creditors, she has not adequately demonstrated actionable fraud in the instant case. As discussed by the Burger court, Read has merely atte
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